Archive for the ‘Personal Injury Lawyers North York’ Category

Rakosi and State Farm – Claimant’s appeal dismissed (social media warning)

Thursday, September 13th, 2012

Eniko Rakosi was involved in a car accident on May 5, 2008. She applied for accident benefits through her accident benefits insurer, State Farm.

State Farm denied various benefits including income replacement benefits, attendant care and medical benefits. The issues failed at mediation and the claimant filed for arbitration.

At the pre-hearing, State Farm asked for productions from Ms. Rakosi’s Facebook account. The arbitrator hearing the case, Arbitrator Bujold ordered Ms. Rakosi to produce all photographs (with her in it) posted to her Facebook profile, included any limited access or private portion of her profile from the date of loss to May 5, 2010.

Arbitrator Bujold held that the test for production was a “semblance of relevance” test.

Previously, State Farm had accessed Rakosi’s Hi5 account (another social networking site) and found photographs which showed the claimant engaged in various social and recreational activities. State Farm believed that her Facebook account would show similar photographs. Since Rakosi’s claim was that she was unable to engage in employment and required help with personal care, State Farm wanted access to this information. They felt there would be a ‘semblance of relevance’.

Ms. Rakosi’s Hi5 site showed pictures of her being attached to a zipline and ziplining. State Farm was of the view that these pictures related to activities related to the disputed benefits. Since Hi5 and Facebook are both social media sites, State Farm made the argument that the Facebook content was relevant.

The Arbitrator was not persuaded by Ms. Rakosi’s counsel that there were reasons against production.

Ms. Rakosi appealed the decision, citing previous decisions that were in favour of claimants like Prete and State Farm, and  Leduc and Roman, where the appellant deemed the semblance of relevance test was correctly applied.

The appeal was heard by Director’s Delegate Blackman, who upheld the original decision that Ms. Rakosi should produce her Facebook account.

Director’s Delegate Blackman however found that the original arbitrator had erred by using the “semblance of relevance” test. This test was used in the court system, under the Rules of Civil Procedure (prior to the January 1, 2010 changes).  Relevance could be interpreted broadly. When the RCP changes came in January 2010, the rule,  Rule 30.02(1) was changed to reflect proportionality, changed from “relating to any matter in issue” to “every document relevant to any matter in issue in an action”.

The rules guiding arbitration stem from the Statutory Powers Procedure Act and instead use a test based on relevance and reasonableness.

Director’s Delegate Blackman felt that using the semblance of relevance test would undermine the alternative dispute resolution system and create a more complicated and costly system while the courts in tort matters are moving in the opposite direction.

Director’s Delegate Blackman found there was no error in extending the inference from one social media site to another and agreed it was likely that her Facebook site would likely contain similar photos.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle various types of claims, including accident benefits claims.

If you are involved in a law suit and have social media sites, remember to inform your lawyer you have social media accounts. Do not alter, delete or remove anything from your account during the course of your lawsuit.

Pre-existing conditions and Critical Illness Claims – Duke v. Clarica Insurance

Wednesday, September 5th, 2012

The Alberta case of Duke v. Clarica Insurance involves the denial of a critical illness insurance claim.

Mr. Duke was diagnosed with Parkinson’s Disease. He applied for critical illness through Clarica in 2001 and purchased a policy for critical illness coverage in the amount of $500,000. He submitted a critical illness claim on May 15, 2003, accompanied by an Attending Physician’s Statement. The Statement was completed by a neurologist.

He was advised that his claim was denied in September of 2003.

Parkinson’s Disease was a covered critical illness under the policy. Clarica stated that according to reports they had received, Mr. Duke’s medical history revealed symptoms of Parkinson’s Disease as early as 1997,  before the policy came into force, therefore they were denying the claim.

The Court was faced with the task of deciding two crucial issues, which can be applied to critical illness claims:

1. Is the Exclusion Clause Ambiguous?

2. Does the Plaintiff Qualify for Benefits?

The Court found that neither Mr. Duke or any of his treating physicians or assessors had associated his earlier symptoms with Parkinson’s disease prior to issuing the policy. The Court also found that the Plaintiff had no obligation to disclose these physical concerns at the time. They were generalized symptoms. The wording of the exclusion clause was found to be ambiguous and the Court found that it did not apply and that Clarica improperly denied the CI benefit.

With respect to the second issue, the Court deemed that Mr. Duke required substantial assistance in order to perform his activities of daily living and satisfied the criteria needed to require a critical illness benefit.

Mr. Duke was awarded damages in the amount $500,000, the amount of the critical illness insurance claim benefit.

Clarica appealed the decision and lost.

The judgement states: “Finally, it is agreed that the respondent was completely honest and forthright in his disclosure and did not in any way misrepresent or conceal his condition or his general state of health from the appellant, nor did he attempt to mislead the appellant.”

The full case can be found here: http://www.canlii.org/en/ab/abca/doc/2008/2008abca301/2008abca301.html

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle critical illness insurance claims. If your critical illness insurance claim has been denied, contact us for a free, no obligation consultation.

FSCO Arbitrator upholds Leone decision: 60 day time limit for mediation elapsed

Friday, August 31st, 2012

On February 10, 2012, FSCO Arbitrator Jeffrey Rogers released a decision, Leone v. State Farm stating that mediation was deemed to have failed because it did not occur within 60 days of the application being filed and the parties could not extend the time limit on consent once the 60 days had expired.

Director’s Delegate David Evans upheld the decision and dismissed State Farm’s appeal, and found that mediation was deemed to have failed.

Leone had submitted an Application for Mediation, which was received by FSCO on October 8, 2010 and no mediator had been appointed by March 14, 2011. Leone then submitted an Application for Arbitration. State Farm argued that he needed to attach the Report of Mediator to his application.

Arbitrator Evans states “I agree with the arbitrator that Mr. Leone did not need to attach the report of mediator to his application for arbitration where mediation has failed by statutory definition, but no report of mediator is available…Mr. Leone should not be prevented from proceeding to arbitration where through no fault of his own, s.280(8) has not been complied with.”

S.280(8) is the requirement to issue a Report of Mediator if the mediation fails.

What is the impact of the decision?

FSCO has notified all lawyers, law clerks and paralegals who have submitted applications for mediations of the decision, provided them with a mediation file number and stated that the following two options continue to be available for those files waiting in the queue:

1. Complete a Consent To Fail Form

2. Complete an Extension Form

Both forms must be completed jointly with the insurer, and require the signature of the client.

The appeal of several court decisions,  Cornie v. Security National (and the other 3 cases heard with it) and Younis v. State Farm regarding the 60-day time limit issue was heard on July 19, 2012 at the Court of Appeal.

The Court of Appeal has reserved judgment and as a result, FSCO felt it was not yet time to change the dispute resolution processes without having heard the results of the Court of Appeal decision.

For those Applications for Arbitration where no Report of Mediator was issued, FSCO is holding them in abeyance pending the Court of Appeal decisions.

According to the FSCO website the current wait time for a pre-hearing date is 6-8 months.

FSCO is looking at outsourcing its mediations to private mediators to assist with clearing up the mediation backlog. It is hoping to have a contract in place by early September. FSCO hopes to hand off 2,000 mediation files monthly to private mediators.

The mediation backlog is frustrating for claimants. By the time the mediation takes place, their circumstances may have changed dramatically. They may have been forced to find work due to financial stress, or their condition may have worsened due to lack of treatment. Treatment needs to be delivered in a timely fashion, in order to be beneficial.

It is not in an insurer’s best interest to have a continued backlog in mediations. Insurers pay 2% interest on claims per month. The longer an application sits in the queue, the more interest accrues.

There are various consequences of Leone v. State Farm and Cornie v. Security National if the original decision is upheld.

In Leone, the arbitrator noted that State Farm did not receive an Application for Mediation from FSCO until a mediator had been appointed. Generally, plaintiff’s counsel sends 2 copies of the application to FSCO, the second copy to distribute to the insurer. If FSCO is backlogged, the insurer does not know until months down the road that there is a pending application.

If the Court of Appeal upholds the decisions in Cornie and finds that 60 days begins to run when the application has been filed, insurers may not know about the application or the dispute until they receive a statement of claim.

Road Trips – Do You Drive Fatigued?

Saturday, July 28th, 2012

Road trips are very popular, especially in the summer.

Fatigued driving is known to be just as dangerous, if not more dangerous than driving while under the influence.

Angus Reid conducted the survey, known as the “Neglected Drive Survey’ and polled 1003 parents online from June 19-23, 2012 and found that 30% of men nod off behind the wheel, compared to only 14% of women. According to the poll, one quarter of men have swerved because they were tired, one third were worried about getting their family into a car accident because they were tired while driving.

These are frightening statistics, because you are only in charge of your own vehicle. The statistics are as follows:

  • 64% of men have continued driving on a road trip when tired
  • 24% of men said they have not paid close attention to the road because they were tired
  • 17% of men said they hoped they wouldn’t get into an accident and kept driving even though they were exhausted
  • 10% of men almost got into an accident because they were tired

When you notice your eyes are getting heavy, you  have to recognize the signs of fatigue and consider the safety of your family, and other drivers on the road.

Don’t fill up on coffee or short breaks. Caffeine is simply not a solution.

The survey results also noted that younger parents are more likely to continue driver vs. older parents, especially if their children aren’t in need of a break. Dads do most of the driving and are not keen on stopped unless a break is needed.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. Contact us today for a free no obligation consultation.

 

In the News: Developments in Depression

Wednesday, June 27th, 2012

Depression can happen as the result of a traumatic experience. Long term depression can make it difficult to perform the duties of day to day employment and activities of daily life.

Researchers in Copenhagen have discovered that plant compounds from South African Daffodils may in time be used for treatment for depression. The plant compounds seem to be able to pass through the blood brain barrier, which is a significant finding. Typically, drugs for “diseases of the brain” are not able to pass the blood-brain barrier.

There is a new research network in Ontario attempting to boost efforts for treating depression. A former lawyer, Phil Upshall, profoundly affected by mental illness and a neuroscientist from the University of Ottawa/ Royal Ottawa Mental Health Centre have joined forces and made a pitch to the federal Conservative government with their proposal for a new research network of 80 scientists working together to find ways to help Canadians with depression. The government granted a $5 million dollar initiative, for the Canadian Depression Research and Intervention Network. This is a recognition by the government that mental illness and depression is a serious issue in Canadian society.

The network will focus on youth suicide and post traumatic stress disorder. According to Mr. Upshall, suicide is the leading cause of death in youth after motor vehicle accidents. PTSD is an anxiety disorder but it is also linked to depression, amongst other factors.

CBC.ca recently posted an article stating that teens and youth with anxiety and depression in Ontario can have faster access to mental health care and can skip doctor referrals. Up to a quarter of teens and youths experience anxiety, depression and other forms of mental illness that go undetected due to the long wait times to see specialists.  The London Health Sciences Centre is offering a program where youth between the ages of 16-26 can pick up a phone and get a mental health assessment, thereby bypassing the need for a referral or long waiting list. Early treatment can prevent mild or moderate illness from becoming more serious.

Did you know that how you use the Internet is a reflection of your mood? Internet use can be a sign of whether or not you are depressed, according to a recent study. Time Magazine recently posted an online article about this, “The Internet Knows You’re Depressed, But Can It Help You?”.  The study examined the internet use of college students and tracked their behaviours. Depressed students typically compulsively check e-mail, watch many videos, spend a lot of time playing games and chatting, and frequently switch back and forth between applications. 30% of the students had low mood, symptoms of anxiety and difficulty with concentration.

Did you know that chronic stress blocks a gene that guards your brain from depression? It turns out that chronic stress appears to block a gene that guards against brain atrophy associated with depression.  The gene is known as Neuritin and appears to be responsible for maintaining healthy connections in particular parts of the brain. The study is published in the Proceedings of the National Academy of Sciences. Rats, whose genes were suppressed, were found to be more anxious and depressed. Activating Neuritin led to an antidepressant response. This research adds evidence to the idea that depression may result from atrophy in the hippocampus, that brain’s centre responsible for mood and memory.

Aaron Waxman and Associates is a Personal Injury Law Firm in Toronto that handles only personal injury claims. We handle long term disability claims. If your claim for long-term disability has been denied, contact us today.

 

 

Difficulties in the land of Accident Benefits

Sunday, June 10th, 2012

Recently, Ontario’s Standing Committee on General Government held public hearings on Ontario’s auto insurance industry practices in Queen’s Park. This committee doesn’t have the power to make changes, but it has the power to recommend them.

The Committee heard from the Insurance Industry, health professionals, personal injury lawyers, Financial Services Commission of Ontario (FSCO) and the Auto Insurance Anti-Fraud Task Force

Personal Injury Lawyers in Ontario can certainly speak to a number of growing concerns when it comes to auto insurance. Especially since the September 1, 2010 reforms.

Accident victims have to contend with the Minor Injury Guideline and a maximum of $3500 of medical/rehabilitation benefits.

Insurance adjusters must provide a medical reason for denying a treatment plan. But why are they being allowed to make medical decisions?

The accident victims who are denied treatment, whose rehabilitation is put on hold are at a serious disadvantage.

It certainly seems as if more and more treatment plans are being denied. And with the MIG in existence, it is harder for people who are placed in that category to achieve full recovery if they require further treatment after the $3500 has run out.

Applying for mediation is they way to appeal an insurer’s decision, however there are over 30,000 applications waiting to be processed and mediated at FSCO. That is very telling.  It is estimated that an additional 3000 applications are being submitted each month.

And what might these applications be for? Denials of benefits – medical benefits, weekly benefits, attendant care benefits, housekeeping benefits….benefits accident victims require to recover and rehabilitate.

Legislation requires that FSCO mediations are to be completed within 60 days of the filing of an application. The reality now is that mediations are taking place 10 to 12 months later, or even longer.

So what did the Insurance Bureau of Canada (IBC) have to say to the Committee?

According to an article posted on CanadianUnderwriter.ca   IBC’s VP for Ontario, Ralph Palumbo said “While the September 2010 reforms were a needed first step in reducing the pressure on no fault injury costs, claims costs are still out of control..”

Mr. Palumbo listed the following reasons for high costs:

1.Mediation Backlogs

2. Increase in Catastrophic Injury Claims

3. Increase in Bodily Injury Costs

4. Persistence of Auto Insurance Fraud

 

With respect to catastrophic injury claims, Palumbo noted that hospitalizations from car accidents decreased by 12% while the number of CAT claims increased.

He further noted that  on the tort side of things, bodily injury claims are increasing drastically. Both the frequency and cost of these claims has been rising. BI claims represent more than $2 billion in annual costs.

Palumbo had this to say: “BI is on the same track accident benefits were before the 2010 reforms and more needs to be done to assess the causes and what can be done to alter this concerning trend.”


Aaron Waxman & Associates is a Toronto Personal Injury Law Firm dedicated to serving the needs of their clients.

 

 

 

In the News: Brain Injuries

Tuesday, May 15th, 2012

A Traumatic Brain Injury occurs when something outside the body hits the head with a significant force. The recent suicide of former pro football player, Junior Seau rekindled the debate on “unseen” injuries in football. These “unseen” injuries are now being classified by the CDC as traumatic brain injuries.

A traumatic brain injury can be the result of a car accident, from a fall, sports injury or other recreational activities or trauma from a blast or explosion (combat).

A TBI can cause changes in a person’s ability to think, control emotions, walk, speak, or even affect his or her sense of sight or hearing.

In the US and in Canada. TBIs are happening in epidemic proportions.

A recent article commented that “combat and football are not that different”, meaning that the potential for brain injuries are similar as are their consequences.  Troops returning from Iraq and Afghanistan bear the outward signs of injury from  combat, but they also bear the “unseen” injuries” of post traumatic stress disorder (PTSD), depression and TBI.

The CDC reports that car accidents are the leading cause of death amongst teenagers. The National Institute of Health says that teenagers and children are more susceptible to brain injuries and concussions as their brains are still developing. Young brains are also more likely to suffer long-term neurological and psychological disabilities that can affect social and cognitive skills, as well as family relationships, for years to come. As the brain is the most difficult organ to heal in the body, the road to recovery is long and often very costly.

Dr. Charles Tator, concussion and brain injury expert made a definite statement about the game of hockey: “We have no treatment for concussions…We have no treatment for the accumulative concussion, we have no treatment for the repetitive concussion, and it is the repetitive concussion that causes brain damage.Let’s get head shots out of hockey.”

The admission that there is no treatment for concussions is enough to carry out the debate on head shots throughout the summer. The statement comes at a time when over 1000 former NFL players are suing the league.

A U.S. study has found that female and younger athletes show more symptoms of a concussion and take longer to recover from its effects. The research comes out of a study from Michigan State University and suggests that physicians now take age and gender in mind when treating an athlete that has suffered a concussion. Canadian experts in concussions have been agreeing with the study and have also been finding that women have a higher mortality rate following severe traumatic brain injuries, outcomes seem to be worse and recovery seems to take longer than men.

Concussion risk may be influenced by gender, age, neck strength/weakness, reaction time and symptom reporting. The developing brain of younger athletes should be treated differently than adults. Experts say that each case should be treated differently.

Aaron Waxman and Associates handles traumatic brain injury injury claims. Contact us today for a free consultation.

Drive Safe This Long Weekend

Tuesday, May 15th, 2012

As the Victoria Day Weekend approaches and people get ready to go to their cottages and go away for the long weekend, the OPP remind everyone to exercise caution with driving and avoid driving while under the influence of alcohol and drugs.

This week, the OPP launched their Safety Week, a province wide blitz for Ontario that began on Monday May 14, 2012.

Police want the public to be aware that they are on the lookout for bad driving habits and safety concerns. They are looking for the main contributors to serious and fatal accidents: aggressive, impaired & distracted driving.  Officers are also checking to see that everyone is wearing their seat belts.

If you have been involved in a car accident, contact Aaron Waxman and Associates for a free no obligation consultation. We can help you during your difficult time.

Developments in Chronic Pain

Wednesday, May 2nd, 2012

Canadians deserve a National Pain Strategy: this is the latest message from the Canadian Pain Coalition. On April 24, 2012 in Ottawa, stakeholders met to discuss the issue of pain at the first ever Canadian Pain Summit. Pain is one of the most common reasons for an individual to contact a doctor yet many studies conclude acute and chronic pain is not well managed. Society does not acknowledge how widespread the issue of chronic pain is. There are 6 million Canadians who suffer from chronic pain from car accidents, workplace injuries, illness, arthritis, cancer patients and veterans. The National Pain Strategy is a call to action to address to social, economic and personal impact of pain on Canadians. The strategy identifies 4 key areas:

1. Awareness and Education

2. Access

3.Research

4. Ongoing Monitoring

Pain costs the economy $56-60 billion in lost wages and direct health care costs, additionally, each individual pays $17,554 for costs not funded by insurance or publicly.

One in three adults with arthritis have anxiety or depression according to researchers from the Centre for Disease Control and Prevention.  A new study suggests that patients with arthritis should be screened for anxiety and depression. In the United States alone, 27 million people age 25 and older have osteoarthritis, and 1.3 million adults have rheumatoid arthritis, according to the American College of Rheumatology. Anxiety was found to be more prevalent than depression amongst people with arthritis. It has been said that heath care providers can make a difference by treating their patients for depression and anxiety and addressing these areas of concern.

A recent article commented that patients with lower back pain have a poor prognosis. It appears that episodes of low back pain return after six months in more than 50% of people and in the subsequent 18 months in 47% of people.

A large study was conducted that demonstrated how “junk food” is linked to depression. The study consisted of 9000 adults in Spain.  Consistent consumption of “fast food” and commercially basked foods and products like croissants and donuts increased the risk of depression. Depression affects 121 million people worldwide.

 

 

Developments in the Field of Depression

Tuesday, April 17th, 2012

Depression is not just a mental illness, it is a whole body illness. In a recent article, “Depression- A Whole Body Disorder“, it is revealed that research shows that depression and other psychological disorders affect the body just as much as they do the mind.

Researchers are starting to view depression as a whole-body, rather than strictly brain-based illness. New research has established that young people who suffer from long-term psychological stress, depression or Post Traumatic Stress Disorder tend to develop physical conditions typically associated with adults, namely stroke, dementia, heart disease and diabetes. Scientists are studying depressed people on a cellular level. They are finding the same changes to chromosomes that occur in people as they age can also be found in people dealing with major stress and depression.

These chromosomal changes are known as “accelerated aging” and this phenomenon is changing the way people in the field of mental health view depression: it’s beginning to be thought of as a systemic illness rather than a mental illness.

A study is being conducted on deep brain stimulation and its use in patients with major depression.

BROADEN™ (Brodmann Area 25 Deep brain Neuromodulation) is the first randomized clinical research study to investigate Deep Brain Stimulation (DBS) as an intervention for patients diagnosed with unipolar major depressive disorder (excluding bipolar disorder) who have not improved after multiple treatments.

DBS is a therapy that uses mild pulses of current (stimulation) to regulate specific areas of the brain, the same way a pacemaker uses pulses of current to regulate the heart.

In this study, stimulation is being delivered to an area of the brain known as Brodmann Area 25, which is believed to function differently in people with major depression and appears to be overactive when people are profoundly sad and depressed.

Dr. Sanjay Gupta of CNN also discusses DBS as a therapy in an article called “Treating Depression with Electrodes Inside the Brain”. DBS actually involves drilling two holes into the skull to implant 2 battery powered electrodes deep inside the brain. DBS targets a very specific structure, Area 25 that is thought to be the ringleader of what controls our moods according to neurologist Dr. Helen Mayberg. Her research showed that Area 25 is overactive in depressed patients. DBS has been used as treatment since 1997 in patients with movement disorders such as Parkinson’s disease and essential tremor. Dr. Mayberg worked with a Toronto neursurgeon, Dr. Andres Lozano with her first group of implant patients and published her study in 2005. DBS has given patients hope for depression.

Transcranial Magnetic Therapy is another type of therapy that is used to treat extreme cases of depression. It was first approved by the FDA in 2008. According to this Chicago Tribune article, the therapy entails having a device delivers small electric pulses to nerve cells in the emotional regulation centers of the brain through a wire coil wrapped around the patient’s head. The patient sits  in a comfortable chair for the duration of the treatment, which is approximately 37 minutes. It is recommended to have 20-30 sessions over a four to six week time span.  Side effects include tingling of the scalp and headache.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We practice personal injury law and handle long-term disability claims. If your claim has been denied, contact us for a free consultation so we can assist you to know your rights.